Highlights of Noteworthy Decisions

Decision 1817 16 R
S. Netten
  • Jurisdiction, Tribunal (direction to Board)
  • Non-economic loss {NEL} (medical assessments)
  • Reconsideration (implementation of decision)

The worker suffered a back injury in 1990, for which the Board granted the worker a 29% NEL award. In Decision No. 1817/16, the vice-chair hearing the appeal noted that the determination was based on the information in the worker's file, without assessment by a NEL roster physician. The vice-chair found that the information in the file was insufficient for determining the degree of impairment. The vice-chair concluded that the NEL rating from the determination is set aside and that the worker was entitled to a rating to be determined following examination by a NEL roster physician.

The worker applied for reconsideration of Decision No. 1817/16.
Board Operational Policy Manual, Document No. 18-05-03, on determining the degree of permanent impairment, used to provide for a NEL medical assessment conducted by a roster physician. However, the policy was revised in November 2014, which was subsequent to the Board operating level decision under appeal but prior to release of Decision No. 1817/16. The revised policy eliminated use of roster physicians, and now allows for an independent medical assessment if insufficient health care information has been provided.
In implementing Decision No. 1817/16, the Board referred the worker for an independent medical assessment. However, the decision specified an assessment by a roster physician. Accordingly, the decision cannot be implemented as directed.
The Vice-Chair considered a clarification of the decision to direct an independent medical assessment. However, the Vice-Chair was concerned that the Tribunal did not have jurisdiction to make such a direction.
Under s. 123(3) of the WSIA, on an appeal, the Tribunal may confirm, vary or reverse the decision of the Board. The appeal in this case was of the Board's 29% NEL rating. A reversal has been interpreted as changing a decision to its opposite, and thus would generally apply to entitlement, rather than quantum, decisions. Decision No. 1817/16, which set aside the Board decision and directed the Board to reach a new decision, did not constitute a reversal of the decision under appeal.
By neither confirming nor varying the 29% quantum, the Tribunal would fail to exercise its jurisdiction.
The application to reconsider was granted. The decision was re-opened for hearing on the merits of the quantum of the NEL award.