Highlights of Noteworthy Decisions

Decision 344 10 R
B. Kalvin
  • Reconsideration (delay)

In Decision No. 344/10, the majority of the hearing panel allowed the worker's appeal, finding that the modified work offered by the employer was not suitable, that the worker was entitled to an LMR assessment and that he was entitled to full LOE benefits pending the assessment. The worker applied for reconsideration of Decision No. 344/10, on the basis that the only issue on the appeal was the suitability of the modified work and that, having found that the work was not suitable, the worker should have been granted full LOE benefits with no LMR assessment.

The application for reconsideration was received more than two years after release of the original decision. The Tribunal practice direction on Reconsiderations provides that it is generally not advisable to reconsider more than six months after the date of the decision. It further states that a delay of more than six months in making a reconsideration request is a factor which may be weighed in deciding whether it is advisable to reconsider a decision. The Vice-Chair was of the view that where there is substantial delay in bringing a reconsideration request for which no valid explanation is provided, the delay can be determinative of the question of whether or not a Tribunal decision should be reconsidered.
In this case, there was no valid explanation for the substantial delay. Further, there was no new evidence or information that was not previously available; there was no reason this argument could not have been made in a timely fashion. Also, the application for reconsideration was prepared by the same representative who acted for the worker at the original appeal.
In the circumstances, the application for reconsideration was denied.