Highlights of Noteworthy Decisions

Decision 1540 17 R
M. Crystal
  • Credibility
  • Evidence (weight)
  • Natural justice (written reasons)
  • Reconsideration (consideration of evidence)

The worker suffered a low back injury in February 2008, for which the Board granted the worker a 24% NEL award. The Board also granted temporary entitlement for psychotraumatic disability. In Decision No. 1540/17, the hearing panel dismissed the worker's appeal on numerous issues, including other areas of entitlement, permanent impairment for psychotraumatic disability and redetermination of the NEL award for low back impairment.

The worker applied for reconsideration of Decision No. 1540/17.
The worker's representative provided a number of medical reports to the Tribunal after the original hearing, in accordance with his undertaking at the hearing. Apparently, these reports were not provided to the hearing panel. The Vice-Chair found that most of the reports were in the case materials. The reports that were not in the case materials would not have changed the result of the original decision.
The hearing panel made findings about the worker's credibility. These findings were supported in the reasons of the original decision. The Vice-Chair also reviewed all the conclusions of the original decision and found that the hearing panel considered the evidence and came to reasonable conclusions.
The Divisional Court recently set aside a decision of the Tribunal, noting that the Tribunal did not have the medical expertise to make a decision that the worker was exaggerating and embellishing his condition, and that there was no medical opinion on which it could rely in support of its conclusion.
The worker submitted that the hearing panel was not qualified to disagree with an expert medical opinion on whether discrepancies between the worker's presentation on video surveillance and other medical information on file was significant. The Vice-Chair agreed that uncontradicted medical information should not be disregarded without an evidentiary basis for doing so. However, other medical evidence is not the only evidence that can be considered when determining the weight to be given to a particular piece of medical evidence.
In some cases, other types of evidence may provide cause to attribute less weight to the medical evidence under consideration. This would be particularly true where the medical opinion was based primarily on a history provided by the worker, or other factors under the control of the worker. A decision to give less weight to certain medical evidence must do so, not on the basis of speculation but, rather, on the basis of persuasive evidence. Typically, the evidence relied on will be other medical evidence, but non-medical evidence may also be persuasive. In this case, the decision of the hearing panel to give less weight to the expert medical opinion was supported by other evidence, including the surveillance evidence.
Regarding credibility, the Tribunal must make clear and explicit findings where necessary and it must provide reasons for such findings. The analysis should not focus on demeanour or testimony in isolation of other evidence. The analysis should demonstrate consideration of all evidence and determination of what is probable in light of the other evidence. In this case, the hearing panel gave explicit reasons for its determination that the worker's testimony and evidence was not credible or reliable.
The application to reconsider was denied.