Highlights of Noteworthy Decisions

Decision 214 13
J. Josefo
  • Accident (occurrence)
  • Credibility
  • Evidence (hearsay)
  • Evidence (rejection of direct testimony)
  • Recurrences (compensable injury)

The worker suffered a back strain in September 2009. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for two new accidents in October 2010 or for recurrence of the 2009 injury.

The case turned on the credibility of the worker. The worker's representative, relying on Decision No. 307/90, submitted that the worker was the sole witness in this matter and that hearsay evidence could not trump the worker's viva voce evidence. However, the Vice-Chair noted that Decision No. 307/90 observed that the Tribunal relies significantly on hearsay evidence and concluded that hearsay evidence cannot be the basis for a tribunal rejecting direct testimony unless it is clear in the tribunal's reasons why its preference for the hearsay evidence is, in the circumstances of the case, appropriate. Decision No. 307/90 relied on the hearsay evidence notwithstanding the worker's direct testimony to the contrary.
In this case, based on lack of continuity of complaint and treatment, the Vice-Chair found that the worker did not suffer a recurrence of the 2009 injury in October 2010. Further, the worker did not suffer new accident on October 15, 2010, considering lack of lost time, ability to carry on with regular work, lack of medical reporting, lack of reporting to the employer, lack of corroborative witnesses and existence of a witness who indicated in a statement that the event did not occur as subsequently claimed by the worker. The Vice-Chair made similar findings in concluding that the worker also did not suffer an accident on October 24, 2010.
The appeal was dismissed.