Highlights of Noteworthy Decisions

Decision 2307 12 R
M. Crystal
  • Evidence (expert)
  • Evidence (weight)
  • Onus of proof
  • Presumptions (occupational disease)
  • Reconsideration (error of law)
  • Standard of proof

In Decision No. 2307/12, the Vice-Chair denied the worker entitlement for esophageal cancer. The worker's estate applied for reconsideration of the decision.

The estate made a number of arguments regarding proof and evidence.
The estate submitted that the presumption in s. 122(9) of the pre-1989 Act applied, in that the worker had a condition (epitheliomatous cancer) listed in Column 1 of Schedule 3. However, the Vice-Chair found that it was unclear whether the disease listed in Column 1 was epitheliomatous cancer or whether it was epitheliomatous cancer of the skin. Also, the disease listed in Column 1 is epitheliomatous cancer or ulceration of the skin due to tar, pitch, bitumen, mineral oil or paraffin. In the original decision, the Vice-Chair found that any exposure to those agents did not contribute significantly to the worker's cancer. In addition, the Vice-Chair noted that the Board has a specific policy on gastrointestinal cancer and that policy does not impose a presumption.
The estate submitted that the Vice-Chair did not attribute weight to Board anonymized decision letters. The Vice-Chair found no error in that regard, because the letters do not provide adequate information upon which to derive any conclusion which could be applied to another case.
The estate submitted that the original decision imposed an unauthorized burden of proof on the estate. It may not be a settled point, but the Vice-Chair agreed with the estate that there is no burden of proof in proceedings at the Tribunal. However, there was no basis to conclude that a burden of proof was imposed on the estate in Decision No. 2307/12. There is, however, a standard of proof, which is the evidentiary standard known as the balance of probabilities.
The estate submitted that Decision No. 2307/12 improperly relied on a Board scientific paper prepared by its Occupational Disease and Policy branch as expert evidence. The Vice-Chair noted that evidence which may not be admissible in court may be admissible in Tribunal proceedings. The Board's paper was relevant to the issue in dispute, and the Vice-Chair chose to attribute weight to it. The Tribunal regularly attributes weight to scientific papers and articles without pursuing a formal process to establish that the authors are experts in their field. The Vice-Chair also noted that the Tribunal practice direction on Expert Evidence does not provide a code which applies to all expert evidence the Tribunal considers. It provides direction to parties who want to adduce new evidence from an expert at a proceeding. It does not apply to reports or papers which have already been included in the case materials that are transmitted from the Board to the Tribunal for purposes of an appeal.
The estate submitted that the Vice-Chair erred in failing to consider materials from the internet for which there were links in the Board's scientific paper. However, the Vice-Chair found that it would not be appropriate to visit websites which are not included in the case materials directly. Such materials are not evidence which was before the Vice-Chair. To do so would lead to the precise body of evidence on the appeal being unclear.
The application to reconsider was denied.