Highlights of Noteworthy Decisions

Decision 3187 18 R
K. Jepson
  • Reconsideration (consideration of evidence)
  • Reconsideration (error of law)
  • Evidence (weight) (medical report)

The worker applied for reconsideration of Decision No. 3187/18 regarding the finding that the worker did not suffer a right wrist fracture in an accident that occurred in November 2015.

The worker submitted that, in making a finding that the worker did not suffer a right wrist fracture, the original vice-chair erred in discounting a report of an orthopaedic surgeon that included a reference to a right distal radius fracture. The worker relied on the decision of the Ontario Divisional Court in Ferreira v. Ontario (Workplace Safety and Insurance Appeals Tribunal), claiming that the original vice-chair substituted her own opinion over that of the doctor instead of relying on medical evidence in determining medical causation.
The original vice-chair did not substitute her opinion for any opinion, medical or otherwise. Rather, she did precisely what she was obligated to do: she adjudicated the question of whether the worker suffered a wrist fracture as a result of the accident by analyzing and weighing the evidence on that issue.
The Vice-Chair noted that a distinction must be drawn between adjudicative decisions and medical opinions. The Tribunal is required to make adjudicative decisions about medical facts. Those adjudicative decisions are solely within the jurisdiction of the Tribunal; they are not made by doctors. The medical evidence is often highly relevant, but does not displace the Tribunal's adjudicative function: the Tribunal can and must weigh the medical evidence and medical opinions before it, along with any other relevant evidence, to make its final determination.
The Vice-Chair was of the view that Ferreira does not stand for the proposition that, when the Tribunal analyses and weighs medical evidence and opinions, the Tribunal is thereby engaged in "substituting" its decision for that of the doctors whose opinions are being considered. The Tribunal can and must assess the content, quality and reliability of medical reports when making its findings. Ferreira does not alter that adjudicative principle. It only re-affirms that the assessment must be done in a manner that meets the reasonableness standard.
The original vice-chair weighed the medical evidence and reached a conclusion based on a balance of probabilities. She provided reasons for how she weighed that evidence. She explained why she discounted the reference by the orthopaedic surgeon to a fracture in his May 2016 report, by considering the characteristics and content of the report itself, along with the context of the report, which included the fact that the surgeon's prior report contained a different diagnosis. The original vice-chair also considered the report in light of the other medical evidence showing there was no fracture.
There was no error of law by the original vice-chair. The application to reconsider was denied.