Highlights of Noteworthy Decisions

Decision 75 21 I
E. Smith - S. Sahay - S. Roth
  • Jurisdiction, Tribunal (Board implicitly dealt with issue)
  • Medical examination (Tribunal assessor)
  • Evidence (confidential information) (health profession proceedings)
  • Referral to Board (stress, mental)

The worker, a teacher, appealed a 2015 ARO decision denying entitlement for psychotraumatic disability and traumatic mental stress (TMS) arising out of an incident with a student in February 2010. While the appeal was pending before the Tribunal, amendments were made to the WSIA regarding mental stress, and the Board revised its TMS policy and issued a new policy for chronic mental stress (CMS). Under the transitional provisions for the amendments, the case was referred back to the Board. In a 2019 decision, the ARO denied entitlement for CMS. The worker appealed both decisions.

A preliminary issue arose regarding the jurisdiction of the Tribunal to address both the TMS and CMS issues, as the 2019 ARO decision expressly addressed only chronic mental stress. The transitional provision in section 13.1(8) required referrals back to the Board for mental stress appeals generally, which meant that both TMS and CMS needed to be addressed by the Board under the new provisions and policies in order for the Tribunal to have jurisdiction to address those issues.
The Panel agreed with the submissions of the parties that the Tribunal had jurisdiction to address the TMS issue as the 2019 ARO decision implicitly addressed TMS under the revised Board policy. The Tribunal referred the worker's mental health claims generally back to the Board as required by the statute, which meant that both aspects of the worker's mental health claim were to be addressed again. The evidence relating to the TMS claim was referred to in the 2019 ARO decision, although only CMS was referred to explicitly by the ARO as the issue under appeal. The substance of the ARO decision was to deny both aspects of the worker's mental health claim.
The Panel also made certain findings of fact, including finding that the worker's doctors were not provided with an accurate description of the incident from the worker. As a result, an opinion was sought from a Tribunal Medical Assessor based on the facts as found by the Tribunal. Materials provided to the Assessor were to exclude materials related to the worker's complaint about one of his treating counselors, as these were inadmissible in a Tribunal hearing under the Regulated Health Professions Act.