- Adjournment (additional Board decision)
This appeal was adjourned. During the proceeding it was discussed whether the Tribunal had jurisdiction over the issue of whether or not the worker's prior low back condition worsened or was aggravated by the August 25, 2021 work accident.
The Panel noted that the Tribunal would normally look to see if an issue was either expressly or implicitly ruled on in the ARO decision. It may also consider whether the issue that is being requested to be added could be considered a sequential issue, or an issue the Board would have been required to rule on if the ARO had come to a different conclusion.The Panel noted that there is Tribunal jurisprudence where additional issues are added to the issue agenda without a specific final decision of the Board. This is done in cases where it is considered that the ARO either implicitly or explicitly ruled on the secondary issue. Sequential issues that the ARO would have been required to rule on if they had arrived at a different result may also be added to the issue agenda. Additional issues could also be added in cases where a decision could be implied to have been made or was required to rule on for the ARO to decide the issue before them, or where the additional issue unpinned the issue in dispute (see Decision No. 1891/18IR). Ultimately the Panel granted the adjournment based on procedural fairness. It was recognized that going ahead could prejudice the employer as they did not obtain appropriate notice of the issues in dispute nor had adequate time to prepare. The Panel also noted the principle of whole person adjudication and found that the worker's low back entitlement should not be fragmented into what resulted from the accident alone and what resulted from an aggravation of a prior condition. It made "common and adjudicative sense" for the issues to be dealt with together.