Highlights of Noteworthy Decisions

Decision 1818 18 R2
17/11/2020
R. McCutcheon
  • Procedure (reconsideration) (Tribunal initiative)
  • Reconsideration
  • Withdrawal (of application)

The worker suffered a low back injury in May 2015. The hearing panel in Decision No. 1818/18 found that the worker did not have entitlement for lumbar disc bulges but that he had ongoing entitlement for the low back beyond October 2017. The employer applied for reconsideration. The employer submitted new evidence, particularly surveillance evidence. In Decision No. 1818/18R, the Tribunal Chair found that, at a minimum, the surveillance evidence cast doubt on the accuracy and credibility of the worker's testimony, and this could affect the outcome of the original decision. The application to reconsider was granted, with a new hearing to be scheduled to consider the merits.

The employer now advised that it did not want to pursue the reconsideration request.
The circumstances of this case are somewhat unique in that the employer is declining to pursue a reconsideration request of a decision in which the threshold test was met.
Section 129 of the WSIA provides that the Tribunal may reconsider its decisions at any time if it considers it advisable to do so. Given the circumstances of this reconsideration, and the doubt about the worker's credibility, the Chair considered whether the Tribunal should continue the reconsideration on its own motion, despite the employer's decision not to pursue it.
In this case, the threshold test had been met, but the original decision on the merits had not been overturned. A re-hearing of the appeal would be required to overturn the original decision. It is not a foregone conclusion that a re-hearing will result in a different outcome. The principles of natural justice and fairness require giving the worker an opportunity to address the new evidence in a re-hearing. Accordingly, the Chair concluded that it is not advisable for the Tribunal to pursue the reconsideration on its own motion, in the employer's absence, as it could potentially place the Tribunal in the inappropriate position of being seen as the worker's adversary in pursuit of the re-hearing of the appeal.
As the Chair noted in Decision No. 1818/18R, it is open to the Board to review the amount of the LOE benefits and the level of the NEL award in light of the surveillance evidence.
The application was withdrawn.