Highlights of Noteworthy Decisions

Decision 2391 17 R
E. Smith
  • Procedure (medical examination) (Tribunal assessor)
  • Reconsideration (consideration of evidence)

The original decision denied the worker entitlement for mucosa-associated lymphoid tissue (MALT) lymphoma.

The worker requested a reconsideration of this decision on a number of grounds.
With respect to the argument of the appropriateness of requesting the assistance of a Tribunal Assessor in the original proceedings, the Vice-Chair, while noting the applicable Practice Direction had been revised on January 1, 2020, referred to the Practice Direction in effect at the time of these proceedings. The Vice-Chair noted however that there was no substantial change between the two versions on the question of when to request such assistance.
The Practice Direction described a process by which a Panel who requires additional medical assistance will generally make the relevant determinations about the facts that will form the basis of the expert opinion, because these are matters for the Panel and not the expert. It was a common practice for the findings of fact to be determined in an Interim Decision, as was done in this case. Matters related to the work history, the jobs done, how those jobs were carried out, and the products used in carrying out those jobs were primarily factual matters that were within the expertise of a lay Panel. In this case, the Panel also addressed the expert exposure evidence provided in the report of an occupational hygienist in its Interim Decision. It made findings about the extent of the exposures in the Interim Decision, not in the Final Decision. This was to enable the Tribunal Assessor to address the issues of medical causation based on the Panel's full relevant findings about the extent of the exposures.
A Panel will find this process especially important if there are differences between its findings about the facts and the facts assumed in any expert evidence in the Board file or provided to it by the parties.
If the representative had wished to raise issue with the Panel's findings about the exposure facts, and to request reconsideration of those facts, the time to raise that matter was before the Panel's questions were referred to the Assessor.
There was no error in the Panel's determination that it required additional medical evidence on a matter of this complexity. That was especially the case once it had determined that the facts of the exposure were considerably less than the exposures relied on in the existing medical reporting. It was within the discretion of the Panel whether it considered this additional medical evidence necessary.
With respect to the question of whether the assessor chosen had sufficient expertise to opine on the medical question in issue, the Vice-Chair noted the Tribunal's process of providing the C.V. of a proposed Assessor to the party before the report is obtained. This process provided the party with the opportunity to make submissions about their qualifications and was sufficient to address the limitations identified about the assessor's qualifications. It was in the discretion of the Panel whether to proceed despite these limitations. There was no error in the Panel's determination in this regard.
With respect to the argument of how the evidence was weighed, the Vice-Chair referred to Decision No. 600/97. That decision addressed what analysis applies to determining when scientific evidence is sufficient in determining causation, setting out the Bradford Hill criteria as relevant to the issue. Decision No. 600/97 also addressed when a finding of increased risk, indicated by the epidemiology, was sufficient to support a finding of causation on the balance of probabilities.
While many Tribunal decisions placed significant weight on IARC monograms, the fact that a chemical exposure is associated with one type of cancer was not sufficient to mean that it is associated with a different cancer. IARC findings were specific with respect to the types of cancer for which it has endorsed findings.
The scientific evidence in this area is still developing and that further research may become available in the future. However, the Tribunal's determinations must be based on the evidence before it.
The Vice-Chair found therefore that there was no error in the Panel's acceptance of the opinions of the assessor and the Board experts that the epidemiology was insufficient to support causation in this worker's case. This literature did not indicate the level of findings that prior Tribunal decisions had identified as sufficient to support probable causation. That was all the more the case given the Panel's findings about the limited extent of the worker's exposures.
The reconsideration request was denied.