Highlights of Noteworthy Decisions

Decision 1702 10 I3
E. Smith - B. Davis - R. Lebert
  • Evidence (reply)
  • Evidence (new evidence)

The worker appealed a decision of the Appeals Resolution Officer denying the worker entitlement for breast cancer.

In Decisions No. 1702/10I and 1702/10IR, the Panel made a ruling about what expert evidence would be admitted.
In this decision, the Panel addressed additional preliminary issues regarding admission of reply evidence and new evidence.
In considering admission of reply evidence, the Panel stated that there may be circumstances in which admission of additional evidence may be necessary or fair, but there is good reason for the rules of reply evidence to reflect reasonable boundaries for the submission of that evidence. It is necessary to address the substance of the issue; whether the evidence is truly offered in response to the evidence of the other party or if it is for the purpose of providing further evidence on matters that have been in issue since the start and thus is evidence that could have been led as evidence in chief.
There are circumstances in which a party will not have an opportunity to fully respond to an expert report of an opposing witness except in reply evidence.
The Panel refused to accept the proposed reply evidence in this case. There was no basis to accept the proposed reply evidence regarding the Boadicea analysis, as this issue was moot, having been superseded by test results. The proposed reply evidence was not related to the test results.
The Panel then considered whether the proposed evidence should be accepted as new evidence. The Panel noted that this appeal has been the subject of a number of delays. The first day of hearing was in 2010. Accepting the proposed new evidence would involve restarting the hearing process in a substantial respect. The Panel stated that a high test applies to any finding about whether new evidence is so central to a case that its acceptance meets the test of exceptional circumstances. There is always new scientific evidence. At some point, the evidentiary record must be closed.
The Panel concluded that the test of exceptional circumstances has not been met. The subject matter of the new evidence falls generally within the matters that were addressed by both expert witnesses in examination-in-chief. The requests of the parties to submit further reply or new evidence were denied (except for two articles about shift work).