Highlights of Noteworthy Decisions

Decision 1057 09
M. Keil - M. Christie - F. Jackson
  • Health care (clothing allowance)
  • Merits and justice
  • Board policies (referral for review) (direction from Board)
  • Discretion, Board (clothing allowance)

The worker appealed a decision of the Appeals Resolution Officer confirming reduction of a clothing allowance for the years from 1996 to 2006.

The Board has discretion to pay a clothing allowance. Prior to 1996, the Board paid the maximum allowance to workers who wore a back brace for more than 25 hours per week. The Board did not distinguish between a Harris brace and a soft brace (canvas belt or corset with steel or plastic stays). As of 1996, the Board changed its policy, so that it continued to pay the maximum allowance for use of the Harris brace but 50% of the maximum for use of a soft brace. As of 2006, the policy was changed again to reinstate the full allowance for use of the soft brace.
In Decision No. 1057/09I2, the Panel found that the 1996 policy was not authorized, based on the lack of evidence to support the stated reasons for the policy change. There was no credible scientific or medical evidence to justify the exercise of discretion to reduce one group's clothing allowance while maintaining that allowance of the other group.
In Decision No. 1057/09I2, the Panel concluded that the 1996 policy change was unauthorized and inconsistent with the purposes of the Act. In accordance with s. 126(4) of the WSIA, the Panel referred the 1996 policy back to the Board for review.
The Board responded that it has a broad discretion to develop and implement a clothing allowance policy and that the Tribunal did not have jurisdiction to review the process by which the Board has developed and implemented the policy. The Board directed the Tribunal to apply the 1996 clothing policy.
The Panel stated that the Tribunal has jurisdiction to determine its own jurisdiction. The Board presented an unduly narrow view of the Tribunal's authority. Section 126(4) authorized the Tribunal to refer a policy to the Board not only when the Tribunal finds that the policy is inconsistent with the Act but also when it finds that the policy is not authorized by the Act.
In Decision No. 1057/09I2, the Panel was cognizant of the Board's absolute jurisdiction to create policies and was careful not to challenge that authority. Rather, the Panel challenged the validity of a policy change that, as far as the Panel could determine, was based on extraneous, collateral or irrelevant considerations without any credible scientific or medical evidentiary support.
The Panel concluded that it properly exercised its jurisdiction to make the s. 126(4) referral.
The Board's response questioned the Tribunal's jurisdiction and did not respond to the substance of the issues raised by the Panel. The Panel now had to determine how to proceed.
The worker submitted that the Tribunal was not bound by the Board's determination. The Tribunal Counsel Office submitted that there might be an interpretation of s. 126(8) that the Board's direction is more in the nature of a clarification or guidance. However, the Panel found it grammatically difficult to escape the conclusion that s. 126(8) authorizes the Board to decide the issue and give instruction to the Tribunal.
None the less, if the Panel were to accept the Board's direction without an explanation of the Board's reasons, the Panel would be in the untenable position of applying a policy that the Panel found to be inconsistent with or not authorized by the Act. This would be an absurd result.
The Panel found a practical way to resolve the problem. The direction of the Board under s. 126(8) may be intended to be binding. However, both the Act and Board policy provide for making decisions on the merits and justice. In the circumstances, the Panel found that the lumbosacral support caused severe clothing damage and that the 50% clothing allowance paid from 1996 to 2006 did not reflect the actual damage. Applying the merits and justice policy, the Panel concluded that the worker was entitled to a full clothing allowance during the years in question.
The appeal was allowed.