Highlights of Noteworthy Decisions

Decision 1229 19
13/12/2019
R. McCutcheon - C. Sacco - S. Roth
  • Disablement (nature of work)
  • Investigation by Tribunal (whether required)
  • Skin condition

The worker, a deli clerk, appealed a decision of the Appeals Resolution Officer denying entitlement for a nose scar and skin irritation.

The worker related her conditions to the employer's introduction of a requirement to wear a face shield when removing roasted chickens from the hot oven and to the introduction of a new degreasing soap for washing dishes.
In a preliminary matter, the Panel noted that the Tribunal's Medical Liaison Office recommended that the Panel obtain a report from a Tribunal medical assessor. However, the Panel found that it had sufficient medical information upon which to make a decision.
Further, the Panel considered the principle of proportionality in adjudication. The Panel referred to an opinion of the Divisional Court that principles of natural justice and procedural fairness do not always require a full trial-like hearing. Relevant factors include: the nature of the decision being made and the process followed; the nature of the statutory scheme; the importance of the decision to those affected; the legitimate expectations of the person challenging the decision; and the choices of procedure made by the tribunal itself.
Obtaining the opinion of a medical assessor involves expenditure of considerable time and resources, for both the parties and the Tribunal. In this case, the worker made a complete recovery and missed work for only two weeks.
In the circumstances, the Panel decided that this was not an appropriate case in which to obtain the opinion of an assessor.
The Panel considered the potential injuring process claimed by the worker: direct burn; pressure on the tip of the nose by the face shield; fumes getting trapped underneath the face shield; and skin irritation caused by the dishwashing product. Supportive medical opinions were largely based on the worker's subjective reporting, without an understanding of the nature of the workplace and the job duties involved. The Panel found no work-related injuring process to cause the worker's conditions.
The appeal was dismissed.