Highlights of Noteworthy Decisions

Decision 2530 18 R
29/04/2020
K. Jepson
  • Benefit of the doubt
  • Investigation by Tribunal (whether required)
  • Reconsideration (error of law)
  • Reconsideration (procedural error)
  • Jurisdiction, Tribunal (binding nature of determination) (previous Tribunal decision)

The worker was injured in November 2001. In Decision No. 2530/18, the hearing panel found that the worker did not have a permanent head or neck impairment. The worker applied for reconsideration of Decision No. 2530/18.

The clinical notes of the worker's family doctor were in evidence but were largely illegible. The worker argued that he should have been given the benefit of the doubt that the notes, if readable, would contain references supportive of the worker's claim.
Tribunal cases have been consistent in holding that the benefit of doubt provision in s. 124(1) of the WSIA only applies where there is concrete evidence both for and against an issue and that evidence is then found to be of approximately equal. Section 124 is not a substitute for proving an issue; it does not apply to an absence of evidence. The illegibility of the clinical notes was the equivalent of an absence of evidence. There was no error by the original vice-chair in failing to assume that the clinical notes would have supported the worker's claim.
The worker also argued that the original vice-chair should have adjourned the hearing to gather further evidence. However, the Vice-Chair noted that the worker did not request any such procedural step at the time of the original hearing. The Tribunal has no obligation to exercise its investigative powers in order to assist the worker in making his case. Rather, it was the job of the worker's representative to assist the worker in making his case, a task which was to be undertaken at the time of the hearing, not afterwards.
Decision No. 1239/10 related to a prior claim by the worker for a low back injury in 2002. The hearing panel in that decision accepted the worker's testimony that his low back had been asymptomatic prior to 2002, with the hearing panel stating that it had no reason to doubt his testimony. The worker appeared to be arguing that, because the prior hearing panel found the worker credible, the vice-chair in Decision No. 2539/18 was either required to find the worker credible or should have placed weight on the prior panel's findings of credibility.
The Vice-Chair disagreed with that submission. The vice-chair in Decision No. 2530/18 was required to accept any prior findings of fact in a prior decision, but the finding of fact that the worker's low back was asymptomatic prior to 2002 was not relevant to the issues the vice-chair was determining in Decision No. 2530/18. With respect to credibility, the vice-chair in Decision No. 2530/18 was not bound by any finding of credibility made by another panel in a separate appeal regarding a different accident and injuries.
The application to reconsider was denied.