Highlights of Noteworthy Decisions

Decision 3428 18 I
G. Dee
  • Words and phrases (claim)
  • Referral to Board (stress, mental)

The worker was a nurse. The Board granted the worker entitlement for mental stress, including post-traumatic stress disorder, resulting from an incident in June 2012, when she was assaulted by a patient. The employer appealed.

In this decision, the Vice-Chair considered whether the appeal should be referred back to the Board in accordance with s. 13.1 of the WSIA.
If the claim is returned to the Board, it will be determined under the expanded entitlement provisions of the WSIA. If the claim is not returned to the Board but proceeds directly at the Tribunal, it will be determined on the basis of the law that existed at the time of the accident and that was applied in the final decision of the Board. The primary consideration is what is required by the legislation, not the practical preferences of the parties.
The transitional provisions associated with the amendments indicate a legislative intention to apply the provisions in a broad but not unlimited manner. Pursuant to s. 13.1(6) and (7), claims made prior to January 1, 2018, which are still pending initial or final decision at the Board, are eligible for application of the substantive provisions in the new s. 13(4). Section 13.1(7) provides that a claim is pending on January 1, 2018, if the Board has not yet made a decision or a final decision in respect of the claim by that day. The Vice-Chair noted that this would capture the situation in which an employer has initiated an appeal of initial allowance of a claim. Thus, the legislation provides clear intention to have the new entitlement rules apply to all claims within the Board that are still subject to adjudication by the Board.
Regarding appeals at the Tribunal, s. 13.1(8) requires the Tribunal to refer the claim back to the Board if a worker has filed a claim with the Board and the claim is pending before the Tribunal on January 1, 2018. Section 13.1(9) requires the Tribunal to refer the claim back to the Board if the worker files a claim after January 1, 1998, within the time limit.
The question was whether the legislature intended to carve out an exception for employer appeals to the Tribunal from the general approach of referring mental stress claims back to the Board. The use of the word "claim" rather than "appeal" raises some ambiguity. However, the Vice-Chair noted that it is not uncommon to use the word claim even with regard to accepted claims. The Vice-Chair also noted the lack of a provision equivalent to s. 13.1(7) in regarding to the Tribunal.
The Vice-Chair concluded that the overall thrust of the legislative amendments is to make the new s. 13(4) apply broadly. It would require more than the use of the word "claim" in a somewhat ambiguous fashion to indicate that the legislature intended a different approach for the small subset of employer appeals to the Tribunal.
The only other possible indication of a desire to carve out a different approach is s. 13.1(9), which specifically only applies to worker appeals to the Tribunal filed after January 1, 2018. This was not an issue in this case but it would appear that an employer appeal to the Tribunal after January 1, 2018, would not be required to be returned to the Board. However, the Vice-Chair noted that a worker involved in such an appeal would not be prohibited by s. 13.1(3) from refiling a new claim.
The Vice-Chair concluded that the claim should be referred back to the Board. The Vice-Chair noted that he would have reached the same result under the new provisions in s. 14 regarding PTSD claims.