Highlights of Noteworthy Decisions

Decision 1643 18 R
28/06/2019
R. McCutcheon
  • Jurisdiction, Tribunal (direction to Board)
  • Non-economic loss {NEL} (medical assessments)
  • Reconsideration (jurisdictional error)

In Decision No. 1643/18, the original vice-chair found that there was insufficient health care information to enable an adequate assessment of the quantum of the worker's NEL award. The matter of the quantum of the award was remitted to the Board so that the worker can be assessed by an independent medical assessor.

The Board applied for reconsideration of Decision No. 1643/18. Relying on Decision No. 1817/16R, the Board submitted that the Tribunal lacks jurisdiction to direct the Board to determine the worker's NEL award based on an independent medical assessment.
Section 47 of the WSIA governs the determination of NEL awards. The Tribunal's jurisdiction is set out in s. 123. Section 123(2) provides that the jurisdiction of the Tribunal to hear and decide appeals does not include jurisdiction to hear and decide appeals from decisions under specified provisions. The Vice-Chair noted that s. 47 is not excluded from the Tribunal's jurisdiction. The Vice-Chair also noted that the Board did not make any submissions regarding the finding in Decision No. 1643/18 that there was insufficient evidence upon which to make the NEL rating.
The Vice-Chair stated that the reconsideration request raises significant practical issues. If the request were granted, the Tribunal would be put in the position of having to rate the NEL award in the face of insufficient medical evidence. Alternatively, the Tribunal would be required to exercise its powers under s. 134 to allow the worker to undergo a NEL medical assessment, since there was no indication that the Tribunal's power under s. 134 to obtain an opinion from an independent health professional was intended to be used for this purpose. Practical issues are not determinative of whether the reconsideration application should be granted but they provide relevant context for interpretation of the Tribunal's jurisdiction.
Prior to release of Decision No. 1643/18, it had been clearly established through Tribunal jurisprudence that the Tribunal has the jurisdiction to direct the Board to rate a worker's NEL award based on a NEL medical assessment. The Tribunal regularly took jurisdiction over issues related to assessment of NEL awards. The Vice-Chair reviewed a number of Tribunal decisions, noting that the common thread was a finding of insufficient or conflicting evidence upon which to rate a NEL award under s. 47, resulting in a direction to the Board to conduct a NEL medical assessment. The Vice-Chair also referred to decisions establishing that the Tribunal has jurisdiction to make orders regarding second NEL assessments.
The Vice-Chair concluded that Decision No. 1817/16R (upon which the Board relied in making its application for reconsideration) should be limited to its facts because relevant Tribunal case law was not considered, because precedents it considered were distinguishable on the facts and because it took an overly narrow approach to interpretation of Tribunal's jurisdiction to confirm, vary or reverse a decision of the Board.
Adopting a broader view of the interpretation of confirm, vary or reverse, the Vice-Chair found that Decision No. 1643/18 did reverse the Board decision, in that it reversed the Board's underlying conclusion that there was sufficient evidence upon which to rate the worker's NEL award. The decision fell within the Tribunal's jurisdiction under s. 123 and was consistent with an extensive line of Tribunal decisions issuing similar directions to the Board.
The application to reconsider was denied.