Highlights of Noteworthy Decisions

Decision 755 20
11/08/2020
J. Smith
  • Arising out of employment (common activity)
  • Chance event
  • Credibility
  • Hearing (alternative techniques)
  • Hearing (oral)

The worker appealed a decision of the Appeals Resolution Officer denying the worker entitlement for a left gastrocnemius musculotendinous junction partial tear.

In a preliminary matter, the Vice-Chair considered the employer's objection to proceeding with the appeal by way of teleconference. The employer submitted that the worker had given different accounts of the accident, that credibility of the worker's testimony was central in determining the issue under appeal, that without the ability to see the worker, the employer would be deprived of its ability to cross-question the worker on this factor and that demeanour was a significant consideration in assessing credibility. The employer requested a video conference or an in-person hearing.
The Tribunal postponed in-person hearings to support the province-wide effort to stop the spread of COVID-19. Effective June 8, 2020, all scheduled in-person hearings were converted to teleconference hearings unless the Tribunal was satisfied that another hearing format was appropriate and necessary.
The Tribunal's COVID-19 Interim Practice Guideline Objections to Alternative Hearing Methods, sets out factors that may be considered in determining the appropriate hearing format. The Guideline notes that, while witness demeanour may be an appropriate consideration when assessing credibility, demeanour can also be misleading and should be factored into the credibility assessment with care, as it can be inappropriately emphasized and that, accordingly, credibility being at issue in a matter will not always necessitate an in-person hearing.
The Vice-Chair also reviewed case law on demeanour and assessing credibility and noted that, even when the case law opined that demeanour was an appropriate consideration, the consensus was that it should be considered with caution as it was open to misinterpretation and overemphasis by the adjudicator.
The Vice-Chair concluded that the hearing would proceed as scheduled by teleconference.
The Vice-Chair found that the worker's partial tear of the left gastrocnemius musculotendinous junction was, to a significant degree, the result of a chance event occurring while she was in the course of her employment. It occurred as she was getting out of her car in the employer's parking lot. The characterization of the injuring process as a chance event is consistent with the approach to such "normal" activities accidents taken by the Tribunal. Tribunal decisions have treated such circumstances involving routine activities as chance events when the evidence establishes a causal connection between an identifiable activity and the injury, even when the activity is commonplace.
The appeal was allowed.