- Jurisdiction, Tribunal (final decision of Board)
- Referral to Board (stress, mental)
The worker appealed a decision of the Appeals Resolution Officer dated in July 2017, denying the worker entitlement for traumatic mental stress. On January 1, 2018, changes to the mental stress provisions in the WSIA came into force. The worker's appeal was still being processed at the Tribunal at that time. The changes to the Act required the Tribunal to refer the worker's claim back to the Board to decide in accordance with s. 13(4) as it reads at the time the Board makes the decision, regardless of the date on which the worker's mental stress occurred. After referral back to the Board, the worker's claim for mental stress was denied by an ARO in a decision dated in October 2019. The worker appealed this decision to the Tribunal, following which her appeal was reactivated.
In a preliminary matter, the Vice-Chair considered the worker's submissions that both ARO decisions (2017 and 2019) remain on appeal.The Vice-Chair obtained submissions from the Tribunal Counsel Office. TCO submitted that the wording and purpose of the legislative amendments to the mental stress provisions and the related transitional provisions suggest that the Board's 2019 decision was intended to replace the Board's 2017 decision as the Board's final decision on entitlement for mental stress. The expanded mental stress provisions were given retroactive effect by introducing transitional provisions. The transitional provisions provided that s. 13(4) as amended as of January 1, 2018, would apply to all new claims that occurred on or after April 29, 2014, as long as they were filed on or before July 1, 2018. This applied to the adjudication of all claims for mental stress that were pending at the Board or Tribunal as of January 1, 2018, regardless of accident date. TCO also noted that the wording of transitional provision in s. 13.1(8) is not discretionary. Rather, the provision requires the Tribunal to refer appeals for mental stress that are pending at the Tribunal as of January 1, 2018, back to the Board and requires the Board to decide the claim under the amended s. 13(4). Given that the Board adjudicated the claim under the amended wording of s. 13(4), as it was required to do, TCO submitted that the Tribunal must now apply this amended wording in adjudicating the appeal of the Board's decision.The Vice-Chair concluded that the 2019 decision is the only decision under appeal. Further, this decision replaces and revokes the earlier 2017 decision which is, in turn, of no force and effect and, thus, the Tribunal does not have jurisdiction to consider the 2017 decision. To the extent that the 2017 decision is incorporated into the 2019 decision, it is now part of the 2019 decision. The 2017 decision is also to be included in the case materials to provide context and background to the appeal of the 2019 decision. Lastly, the legislative provisions and policy applicable to this appeal are those which took effect on January 1, 2018. While statutory provisions and Board policy generally do not apply retroactively, this can be altered by specific statutory wording. The transitional provisions in s. 13.1(6) and 13.1(8) expressly give retroactive effect to the amended wording of s. 13(4).The hearing will reconvene on the merits.