Highlights of Noteworthy Decisions

Decision 1447 14 R2
S. Ryan
  • Agreement (parties)
  • Reconsideration (natural justice)
  • Procedure (alternative dispute resolution) (agreement)

The worker applied for reconsideration of Decisions No. 1447/14 and 1447/14R.

The parties had made a joint submission for resolution of all outstanding issues. The hearing panel assured the parties that the settlement would be accepted providing that it conformed with the Act and Board policy.
In Decision No. 1447/14, the hearing panel did not agree with the joint submission that the worker would receive full LOE benefits from November 2011 to April 2012. Rather, the panel found that the worker was entitled to WT services in the form of a four-week job search training program, with the goal of direct placement in a suitable occupation as a cement truck driver. Accordingly, the panel granted full LOE benefits for four weeks only. The parties had submitted that the WT plan should incorporate retraining as a transport truck driver but the panel found that the SO was that of cement truck driver, a job which the worker had performed for many years and which was available.
In Decision No. 1447/14R, the vice-chair of the original hearing panel denied the worker's application to reconsider Decision No. 1447/14, noting that, in applying Board policy, a panel must exercise its judgement as to what is a reasonable interpretation of the policy.
On this second application, the Vice-Chair noted that, under s. 130 of the WSIA, the Tribunal has authority to offer mediation services. The Tribunal offers a wide range of alternative dispute resolution (ADR) services. If parties have requested ADR services at the time of filing an appeal, Tribunal staff review the file to determine whether the case is suitable for the ADR process. If so, parties are provided with information about the specific ADR process being offered. Parties are aware of their right to proceed to a hearing if a settlement through mediation is rejected by a vice-chair.
This case was scheduled for an oral hearing on the merits, not as some form of mediation. The joint submissions for settlement were presented at the start of the hearing, which was anticipated to be a typical oral hearing. However, the parties and the hearing panel reached a general understanding about the terms under which the settlement would be accepted, with the panel assuring the parties that the settlement would be accepted providing that it conformed with the Act and Board policy.
The proposal of the parties regarding the WT plan and LOE benefits was not necessarily in contravention of Board policy. Thus, considering the initial assurance of the hearing panel, there was no basis to reject the proposal. The Tribunal is not bound to accept a joint submission. Generally, if a settlement is rejected, the parties will proceed to a hearing. By rejecting a portion of the settlement, for a reason other than stated reason that it conform to the legislation and Board policy, the parties were deprived of their right to withdraw the settlement and pursue their right to a hearing.
The Tribunal's threshold test for reconsideration has been met. It was not clear from the worker's reconsideration submissions whether the worker understood that, upon a successful application for reconsideration, all aspects of the hearing would be re-opened. In the circumstances, the Vice-Chair directed the worker to advise within three weeks whether he wanted to re-open the appeal on all issues or to withdraw the application for reconsideration.