Highlights of Noteworthy Decisions

Decision 158 15
04/02/2015
S. Ryan - M. Trudeau - J. Crocker
  • Evidence (weight) (court conviction)
  • Fraud
  • Loss of earnings {LOE} (review) (material change in circumstances)

A hard rock miner suffered a finger and shoulder injury in October 2004, for which he was granted a 19% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits from July 2007 to September 2007.

During the period in question, the worker was involved in a roofing business. The worker was charged with two counts under s. 149(1) of the WSIA for making false or misleading statements, one count under s. 149(2) for failing to report a material change in circumstances, and one count under s. 149(3) for essentially failing to register his company with the Board. In 2012, the Court dismissed the charges under s. 149(1) and (2) and found the worker guilty of the charge under s. 149(3). In 2013, the ARO found that the worker failed to report a material change in circumstances with respect to operation of his roofing business, and denied LOE benefits for the period in question.
Evidence of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offence. Criminal charges must be proved beyond a reasonable doubt, whereas matters before the Tribunal are adjudicated on a balance of probabilities. Therefore, acquittal in a criminal proceeding cannot necessarily be interpreted as a finding of innocence. However, the Tribunal has the power to accept such evidence as it considers proper. Pursuant to that power, the Panel determined that the judgement in the criminal proceedings was relevant to this appeal.
The worker had a 19% NEL award for permanent finger and shoulder impairment. After shoulder surgery, the worker was not capable of the physical demands of his pre-accident job as a hard rock miner. However, he was capable of work that did not exceed his medical restrictions. The activities that the worker was performing in his roofing business were within those restrictions.
The worker was entitled to reinstatement of full LOE benefits for the period in question. The appeal was allowed.