Highlights of Noteworthy Decisions

Decision 3503 18 IR
22/09/2020
E. Smith
  • Board policies (applicability of Board policy)
  • Charter of Rights
  • Issue setting (collateral issues)
  • Reconsideration (jurisdiction)
  • Procedure (Charter of Rights issue)

The worker suffered a low back injury in November 2003. In Decision No. 3503/18I, the hearing panel addressed an appeal by the worker for LOE benefits after lay-off from his job in September 2016, that occurred in the context of his employer's bankruptcy.

The Board denied LOE benefits on the basis that the lay-off occurred more than 72 months after the accident, so that review of LOE benefits was not allowed under s. 44(2) and s. 44(2.1) of the WSIA. The worker appealed on the basis that section 44(2) was not applicable to the facts of his case. He also filed a notice that he was raising a question under the Canadian Charter of Rights and Freedoms. The panel deferred the Charter issue in accordance with Tribunal practice. The Panel found that the worker was not entitled to LOE benefits after September 2016, on the merits of the issue.
The worker applied for reconsideration of Decision No. 3503/18I.
The worker was not in receipt of LOE benefits at the time that he was laid off because he was being provided modified work by the employer. The ARO found that the 72-month limitation on reviews of LOE entitlement applied. At the Board level, this finding disposed of the appeal.
The situation was different at the Tribunal level, because of the Charter issue. The Tribunal practice is to address a Charter issue only after a decision has been made on the other issues in the appeal. The appeal in this case was for LOE benefits. In order to make a decision on the other issues in the appeal prior to proceeding to the Charter issue, it was necessary for the panel to determine all the issues relevant to the worker's entitlement to LOE benefits.
On the reconsideration, the worker submitted that the panel went beyond the legal question of the interpretation of s. 44. The panel interpreted s. 44(2) to apply to the worker's case and to therefore bar the payment of LOE benefits because the lay-off was after the 72-month time period. However, the panel also addressed whether the worker would have been entitled to LOE benefits irrespective of this provision. The Vice-Chair found that this was necessary in order for it to address all issues in the appeal.
Tribunal decisions have found that Tribunal has jurisdiction to address issues that the Board would have been required to address if the ARO's determination on the presenting issue had been different. It was necessary for the panel to address the issue of suitable work and it had jurisdiction to do so. The Board did not include its policies on suitable work in the policy package provided to the Tribunal. The Vice-Chair noted that the Tribunal is an expert Tribunal and is generally aware of Board policy. It is in its discretion to proceed even when a policy that may be relevant has been omitted from the policy package. The panel considered the evidence and came to a reasonable conclusion concerning the suitable work.
The application to reconsider was denied.