Highlights of Noteworthy Decisions

Decision 2691 08 R
D. Corbett
  • Jurisdiction, Tribunal (reconsideration) (application by Board)
  • Procedure (reconsideration)
  • Reconsideration (advisability)

In Decision No. 2691/08, the hearing panel denied the worker entitlement for rectal cancer, which the worker related to workplace exposure to asbestos dust.

The Board applied for reconsideration of Decision No. 2691/08.
In the fall of 2017, the Board announced that it was re-examining more than 250 disallowed claims of workers at a particular plant. The worker in this case worked at that plant. The Board's decision to re-examine the cases was based on evolving scientific evidence about the link between different chemicals and certain cancers, and upon updated information about exposure to chemicals at that plant. The vast majority of the disallowed claims had not been appealed to the Tribunal, so that the Board had jurisdiction to reconsider them.
In this case, the Board's re-examination indicated that the worker's exposure to asbestos dust was greater than the Board previously thought. However, the Board could not reconsider the claim because of the decision of the Tribunal. Hence, the Board requested that the Tribunal reconsider Decision No. 2691/08.
Under s. 129 of the WSIA, the Tribunal may reconsider its decision at any time it considers it advisable to do so, and it may confirm, amend or revoke the decision. Because of the need for finality, the Tribunal has developed a high standard of review.
The circumstances of this case are exceptional, if not unique. The worker in this case is in a fundamentally different position from the vast majority of other workers whose claims are being re-examined by the Board, simply because the worker appealed to the Tribunal.
One of the fundamental concepts that guides the entire Tribunal process is a duty of fairness. The high threshold for reconsideration adopted by the Tribunal was not adopted with the unusual circumstances of this case in mind. In these particular circumstances, the Tribunal Chair concluded that it is not appropriate to weigh the strength of the new evidence that the Board has uncovered and to apply the Tribunal's usual threshold test.
Rather, the Chair took a pragmatic approach that is consistent with the systematic need that like cases should receive like treatment. The Chair noted that several recent amendments to the WSIA include transitional provisions for a referral back to the Board to consider in light of the new provisions. A similar approach should apply in this case.
The Tribunal has express statutory authority to reconsider at any time it considers it advisable to do so. The application to reconsider was granted.
The appropriate disposition of Decision No. 2691/08 is to revoke the decision and remit the matter back to the Board. The Board will then have jurisdiction to reconsider the claim in light of the new evidence.