Highlights of Noteworthy Decisions

Decision 1051 20
D. Revington
  • Accident (occurrence)
  • Evidence (during submissions)
  • Evidence (expert)

The employer appealed a decision of the Appeals Resolution Officer granting the worker entitlement for a right shoulder injury suffered by a chance event in August 2012.

The worker was using an autoscrubber and claimed it stopped, then suddenly moved forward again, jerking her right arm and shoulder. The worker reported the incident immediately but did not fill out an incident report. She continued working and did not seek health care until January 2013. An MRI in January 2013, indicated a serious shoulder condition.
This appeal was originally scheduled for a teleconference. When the worker advised that she would not be participating in the appeal, the appeal was converted to a written hearing at the employer's request.
In written submissions, the employer included opinions by the employer's an Abilities Management Specialist. He was described as being an occupational therapist with 20 years of experience. The employer characterized his opinions as expert witness testimony. The employer quoted the opinion of the occupational therapist on the anatomy of the shoulder, on the medical causation of the worker's shoulder condition, and his assessment of other medical reports. The opinion evidence was not provided in a report or an affidavit, but was quoted in the text of the employer's submissions.
The Vice-Chair found that he did not have an expert opinion before him and that the expert evidence should be excluded on that basis alone. Also, the occupational therapist was not qualified as an expert witness to opine on the possible medical causation of the worker's shoulder condition or to assess medical reports on the worker's shoulder prepared by physicians.
The test for admissibility of expert evidence is set out by the Supreme Court of Canada in R. v. Mohan: the evidence must be relevant; the evidence must be necessary to assist the trier of fact; there must be no exclusionary rule prohibiting receipt of the evidence; and the evidence must be given by a properly qualified person. A more recent judgement of the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., builds on Mohan and adds an additional gatekeeper analysis of considered a cost-benefit analysis to assess whether the value of the expert evidence supersedes its prejudicial impact.
Depending on the issue, occupational therapists have expertise that may qualify them to provide expert evidence in some appeals to the Tribunal but, in this case, the occupational therapist was not a properly qualified expert to provide expert medical evidence and did not have the appropriate expertise to offer the proposed medical evidence.
The Vice-Chair excluded the opinion evidence of the occupational therapist as an expert, but treated the medical opinions attributed to him as if they were part of the employer's submissions, without attributing any additional weight to them.
The Vice-Chair found that an incident did occur in August 2012, because the worker reported it to her employer immediately, there was a witness, the worker's version of what occurred was consistent, and her description of the incident was credible. However, the diagnosis of the worker's right shoulder injury was not compatible with the history of that incident. The fact the worker declined to complete an incident report in August 2012, suggested that the incident was so minor that the impact on the worker's shoulder was negligible. Further, there was no evidence of substance to connect the worker's significant shoulder injuries to the incident in August 2012.
The appeal was allowed.