Highlights of Noteworthy Decisions

Decision 3247 18 R
L. Gehrke
  • Natural justice (written reasons)
  • Reconsideration (consideration of evidence)

The worker suffered a low back injury in March 2009. Decision No. 3247/18 denied permanent impairment for psychotraumatic disability and ongoing benefits beyond April 2013. The worker applied for reconsideration of Decision No. 3247/18.

The Vice-Chair referred to the Supreme Court decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, which discusses the standard for a reasonable decision as one that is "both based up on an internally coherent reasoning and justified in light of the legal and factual constraints that bear on the decision."
When considering the sufficiency of the reasons for a decision, the principles set out by the Supreme Court in Vavilov and in the earlier decisions confirm that a reasonable decision is one that exhibits the hallmarks of justification, transparency and intelligibility. The reasons for the decision must consider the relevant evidence. They must consider and apply the applicable law and policy. The reasons must be internally coherent and follow a logical chain of analysis. While it is not possible or necessary to review all the evidence submitted on an appeal, important evidence which supports a losing party's case should be addressed and the reasons given should be based on a reasonable interpretation of the evidence.
Initial entitlement for psychotraumatic disability was not before the original hearing panel; rather, the issue was entitlement for permanent psychological impairment. Board policy on psychotraumatic disability does not bar entitlement where there was a prior psychiatric condition. The Board policy is consistent with the thin skull doctrine. The evidence in this case concerning a pre-existing condition of anxiety indicated that the Board policy provision on prior history and the thin skull doctrine were relevant considerations. However, the reasons in the original decision to deny permanent impairment did not address this policy provision or the thin skull doctrine.
The original hearing panel found that the worker was not a reliable historian. That speaks to the reliability of the worker's testimony, rather than its credibility. The fact that the worker was not a reliable historian would be relevant to the accuracy of the worker's account of the historical facts but would not necessarily lead to skepticism about the genuineness of the worker's claim. The reasons in the original decision did not address the evidence and the worker's testimony that she has had problems with memory since her injury, due to pain and prescribed opioid medications. The Vice-Chair reviewed the worker's testimony and found that it was consistent with the interpretation she had difficulty remembering dates and past events, rather than being intentionally evasive.
The Vice-Chair concluded that relevant testimony was not considered by the original hearing panel in its reasons on whether the worker had entitlement for a permanent psychological impairment as a result of the compensable back injury, in particular her testimony on her prior psychological history and why she stopped treatment by the Board's clinical psychologist. The original panel also failed to consider appropriately the reports of the worker's family doctor.
The reasons in the original decision regarding ongoing LOE benefits were also insufficient.
The application to reconsider was granted.