Highlights of Noteworthy Decisions

Decision 943 20
02/09/2020
R. McCutcheon
  • Hearing (alternative techniques)
  • Hearing (oral)
  • Loss of earnings {LOE} (cooperation)
  • Psychotraumatic disability

The worker suffered a low back injury in January 2011, for which the Board granted the worker a 14% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for psychotraumatic disability and LOE benefits from November 2011 to January 2014.

The Tribunal Chair reviewed the procedure for determining this appeal to be suitable for an in-person hearing at the Tribunal during COVID-19. Prior to the COVID-19 pandemic, this appeal was originally scheduled to be heard in person in June 2020. Due to the COVID-19 pandemic, in-person hearings at the Tribunal were cancelled as of March 16, 2020. Effective May 13, 2020, the Tribunal communicated that in-person hearings would be converted to teleconference hearings.
In a letter dated May 19, 2020, the worker's representative submitted that the worker had limited ability to read, that the worker had psychiatric conditions and there was concern that the additional stressors of attempting to prepare for the hearing remotely may have a detrimental effect on his psychological conditions. The representative requested an in-person hearing so that he may guide the worker through the rigours of the hearing process.
In a letter dated May 25, 2020, the Tribunal's Manager, Scheduling Administration, denied the adjournment request. The worker's representative responded in a letter dated May 28, 2020, which attached additional medical information, including a note from a psychologist, dated May 28, 2020, stating that the worker had a learning disability, and gave the opinion that the worker required a face-to-face hearing, together with his legal representative. The worker's family physician also wrote a note recommending a face-to-face hearing, as the worker suffered from anxiety and would not present accurately in a teleconference.
The Tribunal's Manager, Scheduling Administration, considered this additional information, and determined that an in-person hearing was appropriate in the circumstances.
Before the hearing, the Tribunal provided the worker's representative with a copy of the WSIAT Guidelines for the Resumption of In-Person Hearings and provided the worker with the WSIAT In-Person Hearings Participant Information Sheet (Appendix C to the WSIAT Guidelines).
The WSIAT Guidelines for the Resumption of In-Person Hearings note that parties are asked not to bring observers or support persons to the hearing. The worker's representative requested approval for the worker's spouse to be allowed to attend the in-person hearing to provide emotional support to the worker. The representative submitted that the worker required this support due to his psychological condition and the associated stress and anxiety he will be experiencing while taking part in the hearing. The Chair, who had already been assigned the case, decided to grant the request for the worker's spouse to attend the hearing. The request was, essentially, a request for accommodation.
On the merits, the Chair found that the worker had entitlement for psychotraumatic disability. The Chair noted that there was a report indicating a diagnosis of chronic pain syndrome. The Vice-Chair carefully reviewed the Board's psychotraumatic disability policy and did not identify any provision precluding the diagnosis of chronic pain syndrome as a basis for entitlement. An injury is characterized as chronic pain disability if the nature of the disability is most closely associated with pain which cannot be attributed to organic causes. In this case, however, the worker has a clearly defined organic injury, namely, fractures at two levels of his spine. Entitlement for chronic pain disability requires evidence that a worker's pain is inconsistent with the organic injury. It was unlikely that the worker would meet that criterion in this case, given the nature of his injuries.
The Chair also found that the worker did not fail to co-operate. The worker was entitled to full LOE benefits during the period in question.
The appeal was allowed.