Highlights of Noteworthy Decisions

Decision 1512 13
J. Moore
  • Adjournment (addition of representative)
  • Hearing (exclusion of witness)
  • Parties (representation) (adequacy) (unrepresented party)

The worker suffered a thigh injury in July 2009 and subsequent low back injury. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for psychotraumatic disability, a NEL award for permanent low back impairment and ongoing LOE benefits after September 2011.

The employer, who was accompanied by his office manager, stated that he was representing himself. The employer had been advised by the Tribunal to obtain representation but had declined to do so. After the worker's testimony, the employer began to question the worker but it became apparent that the employer was unable to distinguish between questioning and giving his own evidence. After several challenges to the employer's approach, the employer requested an adjournment to obtain representation.
The Vice-Chair found that it would be unfair to the worker to grant an adjournment, particularly when the worker had already given evidence in chief. The employer had been advised to obtain representation but failed to do so. In the circumstances, the failure to obtain representation constituted a waiver of the right to have a representative. The Vice-Chair denied the adjournment.
The Vice-Chair noticed that the office manager was advising the employer regarding questions. The Vice-Chair asked the office manager to take over as the employer's representative. The office manager competently handled cross-questioning the worker, questioning the employer and making closing submissions.
The worker objected, noting that the employer was present during the worker's testimony. The Vice-Chair ruled that the exclusion of witnesses does not pertain to exclusion of witnesses whose interest is at variance with the person giving testimony. The purpose of excluding witnesses is to prevent collusion, which is not the case when the interests are at odds. Further, Tribunal practice allows for a representative and a person to provide instructions to that representative.
On the evidence, the worker had entitlement for psychotraumatic disability but did not have a permanent organic impairment. The worker was entitled to LOE benefits based on ability to work full-time at minimum wage.
The appeal was allowed in part.