Highlights of Noteworthy Decisions

Decision 1636 16
E. Smith - J. Blogg - M. Ferrari
  • Intervening causes
  • Estoppel
  • Labour market re-entry {LMR} (cooperation)

The worker suffered a shoulder injury in March 2007, while working in the aviation industry. The Board sponsored the worker in a two-year college program for certification as a non-destructive tester. The worker appealed a decision of the Appeals Resolution Officer finding that the worker failed to co-operate with the LMR program and that he was entitled to LOE benefits based on deemed earnings in the SEB.

At the end of the first year of the college program, the worker was scheduled to write a 90-minute examination. When he arrived to write the exam, he found that the exam was delayed so that a facilitator could provide the class with a survey to complete. The worker objected to the delay vocally, went to try to see a college official about it, returned to the class and got into another dispute with the facilitator, which led the facilitator to call security. The worker was escorted off campus and was unable to write the exam.
The matter was considered ty the student behaviour appeal committee, which required that the worker issue a written apology and undergo a formal behavioural assessment. The assessment was to be conducted by the college's security department. The worker refused to attend the assessment. The worker was concerned about the independence of the security department, and wanted an independent assessment.
The Panel found that the decision of the student behaviour appeal committee was not binding on the Tribunal. In one sense, the finding of the committee implied that the worker's behaviour constituted a failure to co-operate. However, the doctrine of issue estoppel did not apply. The issues were not the same. The considerations regarding completion of a college course were not the same as considerations regarding depriving a worker of workplace insurance benefits due to non-co-operation. Further, the worker was concerned about the requirement to undergo the behavioural assessment, particularly as this could have an effect on his security clearance for his job. Again, the college considerations and the workplace insurance considerations would be different. Also, there were no reasons given by the committee as to why it did not agree to an independent assessment nor did the committee refer to the worker's position in any of the matters before it.
The Panel also found it questionable whether the committee's decisions could be considered quasi-judicial rather than administrative. Issue estoppel only applies to rulings of a quasi-judicial body.
On the merits, the Panel found that the worker engaged in disruptive behaviour. He did not have authority to decide whether the survey should be administered. He should had acquiesced, and complained later to the proper authorities. On the other hand, his decision to withdraw from the school rather than risk a security assessment by the college security department may have been reasonable. None the less, the initial dispute leading regarding the administration of the exam leading to his withdrawal from the program constituted an intervening event that was not caused by his compensable injury and that overwhelmed the role of the compensable injury.
The worker was not entitled to benefits for loss of earnings that resulted from non-compensable matters that arose after the accident. The appeal was dismissed.